from the sidestepping-debate-with-last-minute-additions dept

The UK's long-gestating Digital Economy Act has finally gone into force. The law is mainly interested in porn and pirates -- two issues most of the UK public is far less interested in having subjected to intrusive regulation.

[L]aw enforcement agencies can remotely disable or restrict a mobile phone if it is suspected of being used for drug dealing or related to it, and in some cases regardless of whether a crime has actually been committed, according to legal commentators.

Law enforcement isn't being given a kill switch. But it's being given the next best thing. With a court order, police can approach service providers and have them restrict or cut off service. The only thing law enforcement will have to provide is a vague theory the targeted phones may be involved in criminal activity.

Orders can apply if the user is "facilitating the commission by the user or another person of a drug dealing offense," or "conduct of the user that is likely to facilitate the commission by the user or another person of a drug dealing offence (whether or not an offence is committed)."

Nice touch there, with the "whether or not an offence is committed." A person may not know someone they communicate with is involved in criminal activity, but they're at risk of having their phone service interrupted (possibly indefinitely) nonetheless.

The only way this part of the Act [PDF] could be considered "narrowed" or "tailored" is its limitation to alleged drug-related crimes. That narrowness is immediately removed once you realize how things like buying gardening supplies or driving around with too many air fresheners is considered evidence of drug trafficking.

So, UK police will be doing even more "pre-crime" work, robbing people of their ability to converse with others or keep up with the world around them using nothing more than a target being in the same social circle as criminal suspects currently under investigation.

from the shocked-SHOCKED dept

Legislators working with the Association of California School Administrators are backing away slowly from a bill aiming to separate schoolchildren from their phones and their privacy. The bill would have created an exception in California's privacy law, allowing teachers and school administrators to search the contents of students' phones. Courthouse News' Nick Cahill has more details:

While short in length, the bill has stature. Its 130 words would exempt students from the California Electronic Communications Privacy Act, CalECPA, which was passed in 2015 with overwhelming bipartisan support in the Legislature.

“That law also specifies the conditions under which a government entity may access electronic device information by means of physical interaction or electronic communication with the device, such as pursuant to a search warrant, wiretap order, or consent of the owner of the device,” the new bill states.

This attempt to further limit students' Constitutional rights and legal protections ran into the ACLU's opposition, which noted the exception would "sledgehammer" the Fourth Amendment. Apparently, the backers of the bill thought it would sail through with a minimum of public resistance. Having failed to foresee the expected, supporters are rebranding their civil liberties sledgehammer.

“We’re making it a two-year bill, which means it’s not going to be heard next week. But the conversations are going to continue,” said Laura Preston, lobbyist for the school administrators.

Ah, the classic "wait until the noise dies down and try again" approach. It's just crazy enough it might work. I doubt the legislation itself will be rethought. More likely, the sales pitch will be altered to make the bill appear less sledgehammer-y.

Considering California is pretty much Protest Central, it's a bit stunning to read a legislator was "stunned" by collective opposition to a privacy-threatening bill. But that's exactly how the bill's author, Jim Cooper, described his reaction. The lobbyist for the schools, Laura Preston, went even further, utilizing the post-Godwin Nuclear Option rhetorical device:

“We introduced the bill to try and pull schools out of CalECPA, and you might as well have thought that we started World War III,” Preston said of the reaction.

Supporters of the bill claim the lack of an exception to the privacy law leaves administrators powerless. True, a school administrator can't seek a warrant to access the contents of a student's phone, but there are options schools can use rather than exempt every California student from the state's privacy law.

Most schools have electronic device policies that tie search consent to school attendance, which usually includes personal electronic devices along with vehicles parked on school grounds and lockers. A consensual search -- even if performed under an "implied consent" standard rather than a more affirmative version -- is still a "clean" search, though possibly one less likely to survive a courtroom challenge. Many schools also have police officers on staff. Whether or not these officers can seek warrants to access phone contents is unclear, but in cases of suspected criminal conduct, this would be turned over to law enforcement anyway.

Supporters undercut their Homeroom Apocalypse arguments with their own statements, though.

Since CalECPA was enacted, students have been refusing to hand over their cellphones to teachers and administrators, Preston said. She said teachers usually want access to cellphones to prevent cyberbullying and cheating on tests, not to delve into social media or text messages for criminal content.

I'd really like to hear how paging through some kid's phone "prevents cyberbullying." It may be used to find evidence of ongoing cyberbullying, but it's not going to head it off. If it's really bullying, there are a variety of school policies and law enforcement options available to school administrators that don't involve digging through a student's phone -- a device that will contain far, far more personal info than should be sought by administrators with zero law enforcement training or acumen.

Cheating on tests can be resolved simply by requiring phones to be secured somewhere away from the testing area, like in students' lockers or in instructors' possession until testing is complete. Digging through someone's phone might expose a cheater, but it really seems like overkill considering the privacy issues at stake. It's also not something that should involve any on-site law enforcement officers, even if their powers are slightly limited.

What is clear is "stunned" politicians and school administrators haven't given up on their dream of crushing students' Fourth Amendment protections. No doubt the ACLU -- and others -- will be keeping an eye out for Sledgehammer 2.0 later this year.

from the is-that-a-tracking-device-in-your-pocket,-or-are-you-just-glad-to-see-me? dept

The Argentine government has announced the creation of a new national register of everyone using mobile phones in the country (original in Spanish). An article on Ambito.com says that discussions between the government and telecom companies have been underway for some months, and last week the scheme was finally unveiled. According to the Joint Resolution No. 6 of the Ministries of Security and Communications (original in Spanish), the mobile phone companies will be responsible for developing, operating and managing the system "at their own cost." In practice, this is likely to mean that the extra expenses will be passed on to customers. The personal data must be stored in a "safe, audited and permanent" manner, and yes, the records will be available to the authorities.

The justification for the national register is to combat theft: according to a report in La Nación, 5000 mobile phones are stolen every day (original in Spanish.) To put that in context, another article in La Nación (original in Spanish) says that there are around 60 million mobile numbers in use, which seems rather high given that Argentina's total population is 42 million. Clearly, some people have two or more phones.

Even one is a problem, for reasons that Edward Snowden and Andrew "bunnie" Huang pointed out earlier this year: a mobile phone is "the perfect tracking device." The new register may indeed help tackle the theft of mobile phones in Argentina. But it will also create a powerful and dangerous new resource that the authorities will surely be unable to resist dipping into for other purposes.

from the criminals-are-also-know-to-use-cash,-carry-wallets dept

The Boston Police Department advanced a rather novel legal theory in court recently: because criminals are known to use [common item X], [common item X] can be seized without a warrant. Insert any item into that equation and see what it gets you.

The specifics of the case don't make the theory any less dubious. In this case, the item was a phone owned by a high school student. An investigation of a robbery that resulted in the death of a store clerk resulted in BPD investigators believing the student might be a suspect. From the opinion [PDF] (h/t Brad Heath):

The following day, February 24, 2010, the defendant arrived late to his high school. Pursuant to the school's usual practice for all arriving students, he was searched and his "pay-as-you-go" Samsung/Sprint cellular telephone, equipped with a camera, was confiscated. That afternoon, a detective investigating the robbery-homicide met with one of the school's administrators. The administrator told the detective that the defendant had become "agitated" earlier that day and had left the school without picking up his cellular telephone. The detective notified a supervisor that the school was holding the defendant's telephone. \

Neither the detective nor the supervisor had, at that point, any information that a cellular telephone contained evidence of the robbery and shooting, but they were aware, based on their experience, that such devices often contained useful information in cases involving multiple perpetrators. The supervisor instructed the detective to seize the device without a warrant apparently on the basis of his belief that, if the defendant retrieved the device before a warrant could be obtained, he would destroy the device or erase relevant evidence. Thereafter, the device was transported to the police station, where it was logged as evidence and placed in a special bag designed "to prevent remote intrusion." Police did not search the device.

The fact that the phone could have been retrieved by the student and any evidence on it destroyed was the "exigent circumstances" used to justify the seizure. The phone actually sat around in the evidence locker for 68 days before it was searched. However, the "exigent circumstances" argument failed to salvage the warrantless seizure because the state argued it was allowed to seize anything that could conceivably be used by criminals.

Here, prior to seizing the defendant's cellular telephone, police had received information that the robbery and homicide under investigation had been committed by several people, that the defendant likely was one of those people, and that he owned a cellular telephone. They also knew from experience that coventurers often use cellular telephones to communicate with each other, and that these devices may contain evidence of such communications. According to their own statements, however, the detectives here did not have any "information that [a] cell phone was used in the crime under investigation," nor did they claim that there existed a particular piece of evidence likely to be found on such a device. In essence, then, their decision to seize the defendant's cellular telephone was made because (a) they had reason to believe that the defendant had participated with others in the commission of a robbery-homicide and (b) their training and experience in cases involving multiple defendants suggested that the device in question was likely to contain evidence relevant to those offenses.

The shorter version of this legal theory:

A criminal act was committed. Criminals often use cell phones to communicate and/or document their criminal acts. Therefore, any phone can be seized and held without establishing probable cause for the seizure. Just in case.

The court isn't interested in entertaining law enforcement's assertion that it should be able to seize electronic devices speculatively.

In essence, the Commonwealth is suggesting that there exists a nexus between a suspect's criminal acts and his or her cellular telephone whenever there is probable cause that the suspect was involved in an offense, accompanied by an officer's averment that, given the type of crime under investigation, the device likely would contain evidence. If this were sufficient, however, it would be a rare case where probable cause to charge someone with a crime would not open the person's cellular telephone to seizure and subsequent search.

Noting the Supreme Court's Riley decision, as well as other cases relevant to this search and seizure of cell phones, the state court finds that allowing this argument to salvage the warrantless seizure would turn the Fourth Amendment into a meaningless pile of words.

We cannot accept such a result, which is inconsistent with our admonition that "individuals have significant privacy interests at stake in their [cellular telephones] and that the probable cause requirement . . . under both the Fourth Amendment . . . and art. 14 . . . [must] serve[] to protect these interests." '

Furthermore, it finds that the 68-day gap between the seizure and search was unreasonable. The state argued that the investigation was "complex," but the court points out investigators obtained five other search warrants during that same time period.

Even if it had been more timely in its acquisition of a warrant, that still wouldn't have been able to rescue the evidence it located on the suspect's phone. Because the underlying seizure was performed without probable cause, the use of a warrant for the search did nothing but create a paper trail for "poisoned fruit."

Hopefully this reversal will deter future seizure attempts by state and local law enforcement. Without the ruling in place, anything from cars to computers could end up being taken and held by police under the assumption that criminals use such items. That's not probable cause. That's not even reasonable suspicion. It's fishing expeditions waiting to happen and speculation taking precedent over Fourth Amendment protections.

from the pron dept

When we've talked in the past about government attempting to outright block pornography sites, those efforts have typically been aimed at sites hosting child pornography. Blocking child porn is a goal that's impossible to rebel against, though the methods for achieving it are another matter entirely. Too often, these attempts task ISPs and mobile operators with the job of keeping this material out of the public eye, which is equal parts burdensome, difficult to do, and rife with collateral damage. Other nations, on the other hand, have gone to some lengths to outright block pornography in general, such as in Pakistan for religious reasons, or in the UK for save-the-children reasons. If the attempts to block child porn resulted in some collateral damage, the attempts to outright censor porn from the internet resulted in a deluge of such collateral damage. For this reason, and because we have that pesky First Amendment in America, these kinds of efforts attempted by the states have run into the problem of being unconstitutional in the past.

But, as they say, if at first you don't succeed, just try it in an even more conservatively prudish state again. Which brings us to Utah, where state Senator Todd Weiler is leading the effort to purge his state of any access to porn on mobile devices.

Utah Senator Todd Weiler has proposed a bill to rid the state of porn by adding Internet filters and anti-porn software on all cell phones and requiring citizens to opt-in before viewing porn online. It's to save the children, he says. Weiler successfully pushed an anti-porn resolution through the state Senate earlier this year, declaring porn a "public health crisis." He now hopes to take his movement a step further by making it harder for Utah citizens to have access to digital porn.

"A cell phone is basically a vending machine for pornography," Weiler told TechCrunch, using the example of cigarettes sold in vending machines and easily accessed by children decades ago.

This is where we'd usually talk about how this sort of thing is almost certainly unconstitutional, not to mention how easily circumvented the attempt would be. And both of those remain true for this case. But I would like to instead focus on the lazy analogies Weiler chooses to make and let them serve as an example of how easily twisted people's opinions can become if you simply add "saving the children" to the goals of a particular piece of legislation.

Let's start with the quote above, although I promise you there is more from Senator Weiler that we'll discuss. He claims that a cell phone is basically a porno vending machine, like a cigarette vending machine. The only problem with his analogy is how wildly untrue it is. A cigarette vending machine has no other purpose than, you know, vending smokes. A cell phone, on the other hand, has a few other purposes. Like playing video games, for instance. Or serving as a music device. Or making god damned phone calls. A claim that a phone is simply a vending machine for porn shows either a tragic misunderstanding of basic technology or, more likely, is simply a veiled hate-bomb at the internet itself. Regardless, it is not upon government to decide how our property is used lawfully. And it isn't on government to parent children. We have people for that. They're called parents.

But Weiler wasn't done.

The senator says England was successful in blocking porn on the Internet. Prime Minister David Cameron pushed legislation through in 2013 requiring U.K. Internet service providers to give citizen's the option to filter out porn.

The good Senator must have a strange definition for success, because the UK law is easily circumvented, has managed to censor all kinds of educational and informational non-pornography sites and material, and was created by a lovely chap who was later arrested on charges of child pornography himself. If one wishes to draw upon the success of something in order to push his own interests, that something probably shouldn't be a complete dumpster fire.

Local Utah ISPs are already calling the plan unrealistic and comparing it to censorious governments that I am certain Senator Weiler would recoil from. Not that this matters, I guess, since Senator Weiler fantastically admits that he has no idea how this will all work under his law.

Weiler says he doesn't know how it would work but just wants to put the idea out there and that his main concern is kids looking at porn.

"The average age of first exposure to hard-core pornography for boys is eleven years old," he said. "I'm not talking about seeing a naked woman. I'm talking about three men gang-raping a woman and pulling her hair and spitting on her face. I don't think that's the type of sex ed we want our kids to have."

Look, I usually like to back up my rebuttals to these types of things with facts and figures, but I just don't have them in this case. That isn't going to stop me from declaring that the average first exposure to pornography is an eleven year old boy seeing exactly three men gang-raping a woman is a line of bullshit so deep that the Utah Senate certainly must provision knee-high boots to its membership for such a thing to even be suggested. And this should tell you everything you need to know about Senator Weiler's plans: he doesn't know how successful it's been elsewhere, he doesn't know how it works, and he's willing to sell it to the public on the basis of a scary lie.

from the I-want-to-carry-a-gun-to-a-soccer-game,-but-don't-want-to-look-unhinged... dept

A Minnesota startup is making headlines today for its novel solution to the age-old problem of "children being frightened by strangers with guns."

Behold, the double-barrel .380-calibre handgun by Ideal Conceal: a gun designed to look exactly like a smartphone, complete with fake camera lens and headphone jack.

"In today's day and age, carrying a concealed pistol has become a necessity," reads the company's website. "But what if you didn't have to conceal?"

"Smartphones are EVERYWHERE, so your new pistol will easily blend in with today's environment," the site further explains. "From soccer moms to professionals of every type, this gun allows you the option of not being a victim."

I'm not sure people are going to be more comforted that people are carrying guns they can't see, especially not US law enforcement, which has already demonstrated it fears cell phones as much as it fears guns.

"In general, the concept of any kind of weapon that's disguised, so that it's not apparent that it's a weapon, would be cause for concern," said Bill Johnson, executive director and general counsel for the National Association of Police Organizations.

Yes, it is a cause for concern. But not just for law enforcement agencies. It's highly doubtful most criminals will have much use for a gun that only holds two bullets. But it does give law enforcement the justification it needs to continue harassing people for recording police activity. When any smartphone could conceivably be a weapon, securing the scene means grabbing all the smartphones in the vicinity. Whether or not this seizure would hold up in court during civil proceedings still needs to be tested, but by that point the elimination of possibly damning footage will have already been accomplished.

Worse, it makes mistaking a cell phone for a gun a justification for shooting someone carrying nothing more dangerous than a communication device. The slim possibility that it may be a weapon would generate the requisite "fear for safety of self and others" needed to deploy deadly force. While 99.9999% of the time, the smartphone will only be a smartphone, the 0.0001% chance that it isn't is a blank check for phone seizures/deadly force.

For those concerned about any of these issues, the nation's gun laws won't be of much comfort. At best, the law would require purchasers to shell out $200 in tax (above the $395 retail price), rather than the normal $5 tax applied to most guns -- as this would fall into the "any other weapon" category. Chances are concealed-carry permits would be needed in states requiring them, even if the weapon is carried in "plain sight."

Ideal Conceal says it's already received 2,500 emails from interested customers, which is really a very small percentage of gun owners. Despite this weapon's niche status, we can expect to see more law enforcement officials and legislators expressing their concern in the near future, possibly in the form of badly-written bills filled with broad wording and unintended consequences.

But the broader harm won't be felt by law enforcement. It will be felt by citizens "armed" with actual cell phones, who will find their devices confiscated more frequently, possibly with the assistance of deadly force.

from the good-for-them dept

Congressional hearings involving law enforcement and intelligence folks tend to be fawning affairs, with most of Congress willing to accept whatever these guys have to say. Sure, you'll always have a few people critical of certain aspects, but generally speaking, Congress is especially friendly to the FBI, NSA, CIA, etc. So it must have come as a bit of a shock to FBI Director James Comey that during a long House Judiciary Committee hearing yesterday, they seemed pretty pissed off at Comey's belief that the courts should force Apple to help him open up encrypted iPhones.

One judiciary member questioned how the FBI managed to mess up so badly during the San Bernardino investigation and reset the shooter’s password, which is what kicked this whole controversy and court case in motion in the first place. And if the case was such an emergency, why did they wait 50 days to go to court? Another member questioned what happens when China inevitably asks for the same extraordinary powers the FBI is demanding now. Others questioned whether the FBI had really used all the resources available to break into the phone without Apple’s help. For example, why hasn’t the FBI attempted to get the NSA’s help to get into the phone, since hacking is their job?

[....]

More than anything, though, the members of Congress expressed anger that the FBI director didn’t follow through earlier on his stated intention to engage in a debate in Congress and the public about the proper role for encryption in society. Instead, he decided to circumvent that debate altogether and quietly go to court to get a judge to do what the legislative branch has so far refused to do.

“I would be deeply disappointed if it turns out the government is found to be exploiting a national tragedy to pursue a change in the law,” Rep. John Conyers (D-MI) told Comey.

[....]

“But what concerns me, Mr. Chairman, is that in the middle of an ongoing Congressional debate on this subject, the Federal Bureau of Investigation would ask a federal magistrate to give them the special access to secure products that this committee, this Congress, and the administration have so far refused to provide,” he said. “Why has the government taken this step and forced this issue?”

He went on to speculate that the reason could be found in an email from “a senior lawyer in the intelligence community,” obtained and published in part by the Washington Post in September 2015. The email said that the “the legislative environment [with respect to mandating backdoors] is very hostile today,” but that “it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.”

“I’m deeply concerned by this cynical mindset,” said Conyers, implying that the Department of Justice and the FBI might be exploiting the San Bernardino attacks in order to mandate backdoors.

To be fair, contrary to what some articles are saying, this is not the first time Congress has been skeptical about the FBI's view on the encryption wars. A little less than a year ago, a hearing set up by a different committee, the House Oversight Committee included some similar points with Congressional reps being quite skeptical of the claims by law enforcement about the need for encryption backdoors. However, the drumbeat from Congress appears to be getting louder -- and that's a good thing.

Of course, some of the annoyance from Congress appears to just be about who gets to decide what happens here. That is, some of the anger seemed to be over the DOJ's decision to rush to the judicial branch, rather than let the legislative branch figure out what it wants to do. However, there's definitely a clear (and, amazingly, bipartisan) group of folks in Congress who recognize that the FBI's arguments about how it "needs" this information is a bunch of hogwash.

California assembly member Jim Cooper (D-Elk Grove) introduced the legislation, bill 1681, that would require any smartphone manufactured "on or after January 1, 2017, and sold in California after that date" to be "capable of being decrypted and unlocked by its manufacturer or its operating system provider."

Any smartphone that couldn't be decrypted on demand would subject a seller to a $2,500 fine.

At a press conference today, Assemblymember Jim Cooper (D-Elk Grove), along with the Sacramento County District Attorney’s office, crime victim’s families, and bill supporters, announced the introduction of AB 1681. The bill will allow law enforcement to investigate and prosecute suspected criminals and criminal organizations that are involved in human trafficking and other serious crimes.

[...]

“Human traffickers are using encrypted cell phones to run and conceal their criminal activities,” said Assemblymember Cooper. “Full-disk encrypted operating systems provide criminals an invaluable tool to prey on women, children, and threaten our freedoms while making the legal process of judicial court orders, useless,” Cooper added.

You hear that, citizens? Encryption "threatens our freedoms," which is a really weird way to rephrase limiting cell phone buyers' choices and forcing them to select less secure options.

Of course, a prominent member of local law enforcement was on hand to offer support for the encrypted phone ban.

“I support an anti-encryption policy that will restore the ability to access cellphone data by a court ordered search warrant. If smartphones are beyond the reach of law enforcement, crimes will go unsolved, criminals will not be held accountable, victims will not receive justice and our ability to protect our children and community will be significantly compromised,” said Sacramento County District Attorney Anne Marie Schubert.

Yes, this heartwarming concern for "victims receiving justice" and "unsolved crimes" is the same heartwarming concern that led to a backlog of more than 1,500 rape kits in her jurisdiction, some dating back more than a decade -- a backlog that only began to be cleared thanks to activism and legislation.

Cooper's proposed legislation is basically a word-for-word copy of Titone's.

A smartphone that is manufactured on or after January 1, 2017, and sold or leased in California, shall be capable of being decrypted and unlocked by its manufacturer or its operating system provider.

Customers will still be able to implement their own encryption to lock the government out of their phones and, of course, anyone can buy or lease an encrypted phone from an out-of-state retailer and use it in California without fear of reprisal.

Unlike Titone, who appears to be slipping this bill into each legislative session with as little noise as possible, Assemblyman Cooper as least has the courage of his convictions to not only craft this terrible legislation, but also announce its arrival with a press conference. Considering his bill is both anti-consumer and anti-constituent, that's a pretty bold move. If you're going to attack your voter base, the least you can do is be transparent about it.

from the BLOWOUT!!!!-ALL-RIGHTS-MUST-GO!!! dept

The Supreme Court's Riley decision made it clear: law enforcement cannot search cell phones without a warrant. Seems pretty straightforward. Cell phones aren't mere "containers" -- they contain a great deal of information that has historically been afforded a reasonable expectation of privacy. Get a warrant.

H.527, introduced by Rep. Martin LaLonde, D-South Burlington, would allow law enforcement officers to see a driver's phone or other electronic device, to see if it was being used.

By "see," LaLonde means "look at web activity, text messages, recent phone calls or anything else that might indicate the phone was in use." All without a warrant, and based on nothing more than an officer's suspicion that the driver may have been "distracted."

LaLonde, another legislator who seems to have little grasp of the particulars of his trade (other laws, the Constitution) says this won't be an excuse for police to go "rummaging" through drivers' phones. In support of this assertion, he states that he has no idea what limits will be in place or how any of this will actually work.

[T]he chief sponsor of the bill said he hasn’t “really thought about” what, exactly, would be fair game for a warrantless search under his bill.

Here's a stab at narrowing the search.

“Essentially, it’s ‘show me your text log,’” he said.

Whatever the fuck that is. To figure out whether or not a driver has been texting, the officer will have to look at a few messages. What if the officer comes across a message that sounds like code for a drug deal? Would it be considered "plain sight," what with the law authorizing a quick peek at recent activity?

No man is an island, it has been said. LaLonde may be the exception.

No other state allows warrantless searches to combat phone use while driving.

LaLonde is trying to equate distracted driving with impaired driving. While the tragic outcomes of these two behaviors may be similar, the evidence gathered is worlds apart.

LaLonde said he looked at the precedent of breathalyzer tests. Anyone who drives a vehicle on a highway in Vermont is implied to have given consent to take a breath test if an officer suspects him of driving drunk. Refusing to do so can be introduced as evidence in a criminal proceeding.

Under LaLonde’s bill, a driver who refuses police access to his phone would get the same penalty he’d get if he was, in fact, texting.

The privacy impact of giving police carbon dioxide and giving police access to a cell phone aren't comparable. While the originating actions could both result in criminal charges, only one would allow officers to access a wealth of personal information without a warrant. There's only so much abuse an officer can perform with a breathalyzer. An unlocked phone, though? That's a fishing expedition waiting to happen.

It's not just civil liberty advocates and people with common sense that have problems with LaLonde's proposal. Local law enforcement officials don't seem particularly enamored with the legislation either.

Orange County Sheriff Bill Bohnyak, president of the Vermont Sheriffs Association, said he would support the bill, though he doesn’t want to infringe on anyone’s rights.

Thanks for the 4thA hat tip, Sheriff. That's mighty thoughtful, especially for someone who also heads the local law enforcement union. But why would you support a bill you think might infringe on people's rights? Are you hoping the Supreme Court will reverse its decision in the next few months? Or are you expecting the War on Terrorism to strip away what's left of the Fourth Amendment now that the War on Drugs has had its way with with for four decades?

One of Bohnyak's deputies has his own concerns about the bill… but they're strictly logistic.

Deputy Bariteau, who spends hours patrolling the roads of Orange County looking for distracted drivers, said he’s concerned about some of the practical aspects of LaLonde’s proposal. For example, he said, there are a lot of different phones out there, and officers might not know how to use all of them.

“If you make a law, it’s gotta be enforceable for us,” he said.

Warrantless cell phone searches are pretty much illegal, but the only thing bothering the deputy is that some phones might go unsearched because of a lack of officer skillz.

Finally, LaLonde defends his proposal by offering up the stupidest, most asinine defense of privacy violations: the "I, for one, welcome our new privacy-violating law enforcement overlords" cliche.

“Personally, if I’m in a car and I’ve been text messaging, I should expect narrow privacy,” he said.

Here's an idea: if you expect less privacy, then behave accordingly. Hand over your phone along with your license and registration and sign the search consent form. Enjoy your self-imposed lowered expectation of privacy on a one-to-one basis. Don't forget to ask officers to search your trunk, glove compartment and anus, Rep. LaLonde, because those are all places people have been known to hide contraband and you're certainly not carrying any of that, right? Be the hero Vermont neither wants nor deserves. But don't force it on your constituents.

from the the-analogy-that-almost-worked dept

Sometimes the courts realize today's smartphones can't be reasonably compared to anything else people have historically carried with them, like wallets, address books and the contents of their pockets. In the Supreme Court's Riley decision, it noted that searching a smartphone is roughly analogous to searching someone's house -- people's entire lives are contained in these devices. Hence, the warrant requirement, which turns phones from a "container" to the most sacrosanct domain under the Fourth Amendment.

Sometimes, though, the house analogy works againstdefendants and their smartphones, as in this recent case highlighted at FourthAmendment.com. A warrant application to search a suspect's cell phone was broadly (and badly) written, asking for basically everything the device could conceivably contain.

In his affidavit, which was attached to his application for the warrant, Walker set out the substance of the investigative interviews and concluded by stating: "Based on the above facts . . . I have probable cause to believe [the defendant's] cell phone contains valuable information that will link the victim/suspect ([the defendant]) and suspect/victim (Lerouge) to the crime." Walker received and executed a warrant to search the defendant's iPhone for the following:

The suspect sought to suppress the photographs found on his iPhone -- ones in which he was holding a gun and wearing the same jacket as the person sought in connection with a shooting.

The court did have problems with the warrant as written.

The warrant is awkwardly written, conflating at least in part the items to be searched for and the places to be searched. We agree with the dissent that as written the warrant and the warrant application are overly broad.

But it found that considering what would need to be viewed to determine whether or not it was evidence of criminal activity, the search did not exceed the limits of the warrant.

[C]onsidered in conjunction with the affidavit incorporated therein, a commonsense reading shows that the warrant authorized a search of various types of files for evidence of communications that would link the defendant and another person to the shooting.

In its decision, the court applied the house analogy (tipping a hat towards the Riley decision) and found the broad range of content searched to be roughly equivalent to the search of a residence with a warrant.

In the physical world, police need not particularize a warrant application to search a property beyond providing a specific address, in part because it would be unrealistic to expect them to be equipped, beforehand, to identify which specific room, closet, drawer, or container within a home will contain the objects of their search.

So, when searching the phone, the government may treat it like a house, providing little more than a short physical description of the item, along with where it thinks evidence may be found. The government, however, should not extend this analogy further than is necessary. It cannot remain vague on the specifics of what it's searching for, nor can it avail itself to the entire contents of the device without reason.

Nevertheless, much like a home, such devices can still appropriately be searched when there is probable cause to believe they contain particularized evidence. See McDermott, 448 Mass. at 770-772. However, given the properties that render an iPhone distinct from the closed containers regularly seen in the physical world, a search of its many files must be done with special care and satisfy a more narrow and demanding standard.

At issue here were the incriminating photographs, which the defendant sought to suppress. He argued the police only had probable cause to search his text messages and phone calls. The court disagrees.

Communications can come in many forms including photographic, which the defendant freely admits. So long as such evidence may reasonably be found in the file containing the defendant's photographs, that file may be searched.

[...]

Once the photographs in question were viewed, their evidentiary relevance linking the defendant (holding a gun and wearing a jacket similar to the one worn by the shooter) to the specific crimes under investigation was apparent.

"Your phone = your house" does the defendant no good here, primarily because warrants can be used to access both with little fear of constitutional violations. Even the comprehensive nature of the warrant falls within the confines of the Constitution, as the swearing officer had shown that evidence linking the suspect to the crime would likely be found on his phone.

The dissenting opinion, however, disagrees that the photographs entered as evidence were actually evidence of anything more than the suspect's ownership of a gun and a jacket.

I disagree with the court's resolution of the issues presented here. In my view, the search of the photograph files on the defendant's Apple iPhone "smart" cellular telephone was not supported by probable cause, and the warrant authorizing that search was not sufficiently particular. Furthermore, even had there been probable cause to support a search of the photograph files, the photographs seized by the police appear to have been outside the permissible scope of the warrant.

The photographs were supposedly "threats" sent to a recipient by text message. The dissent argues that applying the phone = house analogy may prevent warrantless searches, but it does very little to deter police from performing invasive searches of suspects' devices.

The court incorrectly holds, however, that there was probable cause to search the entire set of photograph files on the defendant's iPhone. In my view, there was not a substantial basis for concluding that the entire set of the defendant's photograph files, rather than just the subset of photograph files attached to the defendant's text and multimedia messages, was related to the criminal activity under investigation.

The dissent warns that the over-reliance on analogies will likely result in more abuse of non-specific warrants as devices carried by a majority of the population continue to hold more and more of their "private" lives.

In an increasingly digital world, we continue to lean heavily on analogies between digital media and physical spaces and objects, such as that between a computer and a closed container. In reality, however, searches of physical spaces for physical objects are akin to searches of digital media for digital information much in the way that "a ride on horseback" resembles "a flight to the moon."

While narrowing the scope of purely digital searches may be difficult, it is not impossible. The purpose of the court is not to make things easier for law enforcement, but rather demand more from them as the stakes rise. To call a phone a house may keep cops from accessing contents without a warrant, but it does little to prevent them from accessing everything once a warrant is in hand.

Here, the state sought to apply the "plain view" standard to its access of photos not attached to text messages -- positing that the incriminating pictures would inevitably have been seen by investigators during the execution of the search warrant. But, as the dissent points out, applying a warrant exception to a not-quite-fitting analogy only encourages law enforcement to pursue generalized searches that encompass the entire contents of suspects' smartphones, rather than limit themselves to where evidence is most likely to be found.

In Preventive Med. Assocs., supra at 832, this court elected to "leave for another day the question whether use of the plain view doctrine as a justification for admission of evidence should be precluded or at least narrowed in the context of searches for electronic records." While not today, the day when the court will be called upon to determine more precisely when and how the plain view exception applies to digital searches is likely close at hand.

The inevitable has been postponed. This court -- and many others around the country -- will have to tangle with this issue and decide for themselves whether they'd rather apply analogies or remedies. Only one will prevent digital devices from being treated with the disregard as the British treated colonists' homes during the execution of general warrants.